U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alisa M.,1 Complainant, v. Rex W. Tillerson, Secretary, Department of State, Agency. Appeal No. 0120171892 Agency No. DOS-0038-17 DECISION In an envelope without a postmark received by mail on May 4, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final agency decision (FAD) dated March 21, 2017, dismissing her complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by a staffing firm working at the Agency's Diplomatic Security Service (DSS), Diplomatic Security Management Logistic Services (DS/MGT/LS). The record suggests she worked in the Washington, D.C. area. Complainant filed an equal employment opportunity (EEO) complaint dated February 20, 2017,3 alleging that the Agency discriminated against her based on her disability (Post Traumatic Stress Disorder (PTSD)) and reprisal for prior EEO activity (under the Rehabilitation Act and the Americans with Disabilities Act) when: 1. on June 13, 2016, the Agency denied her request for the reasonable accommodation of telework; and 2. she was terminated by her staffing firm on October 3, 2016. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was an employee of the staffing firm, not the Agency. In January 2013, Complainant was hired by DSS as an Agency employee to the position of Foreign Service Diplomatic Security Special Agent Candidate, a law enforcement position. The Agency notified Complainant that effective October 4, 2013, she would be terminated for failing the run portion of the Basic Special Agent Course Physical Fitness Test. Complainant filed a grievance.4 Pending resolution of the grievance, she was assigned by the Agency to DSS, DS/MGT/LS. The Logistics Service assigned Complainant to design an automated web-based help desk for DSS, which had been long delayed. The DS/MGT/LS Branch Chief, and the Division Chief, Diplomatic Security, Office of Management Services advised Complainant that if she was terminated while working on the project, she would either be rehired directly by the Agency, placed as a personal service contractor, or placed on a third-party contract. On April 25, 2014, Complainant was notified that she would be terminated by the Agency effective April 29, 2014. She immediately informed the Agency Branch Chief. On the same day, a staffing firm called Complainant informing her that it was contacted by the Agency Branch Chief, who advised Complainant was going to be its newest employee. She previously had no communication with the staffing firm. Complainant was hired by the staffing firm on April 29, 2014, and reported back to the same supervisors, desk, and tasks in DS/MGT/LS. She used the same security badge she was given in January 2013, received her supervision from Agency supervisors who assigned her all her work, and was required to get permission by her Agency supervisor before using leave. Complainant wrote that approximately 5% of her interaction was with the staffing firm, and while she received her evaluations from it, they were submitted by Agency supervisors. On March 20, 2016, Complainant's personal vehicle was shot into while she was driving to her apartment. The gunshot shattered her rear windshield and she was extremely frightened, and shortly thereafter was diagnosed with post-traumatic stress disorder (PTSD). She was out of work for some time. As an accommodation, she requested part-time hours which would taper up, and partial telework. On June 13, 2016, the staffing firm emailed Complainant that it brought this request with the Agency, and that it replied that while it "understands [Complainant's] need for a slow re-entry into work, following her extended absence...During the past few months, DS/MGT/LS rebalanced portfolios in the office to accommodate [Complainant's] absence. As such, we currently have no work or projects readily available for [Complainant] to perform via telework...." The email from the staffing firm continued, "DS did not accept the telework accommodation recommended by your physician." According to Complainant, on October 3, 2016, her staffing firm told her that she was terminated because she had a conflict of interest of interest with her employment, and when she asked for elaboration, was told she had sued their client - the Agency. See, footnote 4 of this decision. Following the dismissal of her complaint, Complainant filed the instant appeal. She argues that she was jointly employed by the Agency.5 She also asserts that based on the Agency's control it can be inferred that the staffing firm did not make the decision on its own to terminate her. In opposition to the appeal, other than a pro forma statement that it supports its FAD, the Agency makes no argument that it did not jointly control Complainant's employment. Rather, it argues that while on appeal Complainant provides information about the involvement of the Agency in assisting her with obtaining a position with the staffing firm, she failed to include evidence to demonstrate that the Agency participated in the decision by the staffing firm to terminate her. It points to Complainant's affidavit, submitted with her complaint, indicating that the staffing firm decided to terminate her, and argues that absent any evidence that the Agency was involved with her termination, her complaint still fails to state a claim. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim on the basis that she was not its employee. EEOC Regulation 29 C.F.R. § 1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. We begin our analysis by noting that some agencies have not applied the Commission's long-standing position on the issue of joint employment, a position that the Commission has announced many times and in several formats, including Compliance Manual chapters, formal enforcement guidance, and federal-sector rulings. We note that the Commission's long-standing position on "joint employers" is found in numerous sources. See, e.g., EEOC Compliance Manual Section 2, "Threshold Issues," Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual)6; EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) (Enforcement Guidance), "Coverage Issues," Question 2; Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision. Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See, e.g., Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 2016); Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are just two of the factors relevant to joint employment under the Commission's long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination. The term "joint employer" refers to two or more employers that each exercises sufficient control of an individual to qualify as the worker's employer. Compliance Manual, Section 2-III(B)(1)(a)(iii)(b). To determine whether the Agency has the right to exercise sufficient control, EEOC considers factors derived from common law principles of agency. See Enforcement Guidance, "Coverage Issues," at Question 2. EEOC considers, inter alia, the Agency's right to control when, where, and how the worker performs the job; the right to assign additional projects to the worker; whether the work is performed on Agency premises; whether the Agency provides the tools, material, and equipment to perform the job; the duration of the relationship between the Agency and the worker whether the Agency controls the worker's schedule; and whether the Agency can discharge the worker. EEOC Compliance Manual, Section 2-III(A)(1) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); EEOC v. Skanska USA Bldg., Inc., 550 F.App'x 253, 256 (6th Cir. 2013) ("Entities are joint employers if they 'share or co-determine those matters governing essential terms and conditions of employment'") (quoting Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985); see also Ma, EEOC Appeal Nos. 01962389 & 01962390. The language of the contract between the agency and the staffing firm is not dispositive as to whether a joint-employment situation exists. In determining a worker's status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (while contract between staffing firm and agency provided that contract personnel were employees of staffing firm under its administrative supervision and control, agency actually retained supervisory authority over the contract workers). On the factor of the right to control when, where, and how the worker performs the job and to assign additional projects, complete agency control is not required; the control may be partial or joint and still point to joint employment. Shorter v. Dep't of Homeland Sec., EEOC Appeal No. 0120131148 (June 11, 2013) (where both staffing firm and agency made assignments, this pointed to joint employment); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120143162 (May 20, 2015), request for reconsideration denied, EEOC Request No. 0520150430 (Mar. 11, 2016) (where staffing firm wrote and issued complainant's appraisal with input from agency, this pointed toward joint employment). Likewise, where both the agency and staffing firm provided tools, material, and equipment to perform the job, this pointed to joint employment. Elkin v. Dep't of the Army, EEOC Appeal No. 0120122211, 2012 WL 5818075 (Nov. 8, 2012). Similarly, where a staffing firm terminates a worker after an agency communicates it no longer wants the worker's services, this supports a finding that the agency has joint or de facto power to discharge the worker. See, e.g., Complainants v. Dep't of Justice, EEOC Appeal Nos. 0120141963 & 0120141762 (Jan. 28, 2015); see also Skanska USA Bldg., Inc., 550 Fed. App'x at 254, 256 (where defendant removed staffing firm's workers from job site without challenge from staffing firm, and after such removals staffing firm generally fired worker, this pointed to joint employment); Butler v. Drive Auto. Indus. of America, Inc., 793 F.3d 404, 414-15 (4th Cir. 2015). The EEOC considers an entity's right to control the terms and conditions of employment, whether or not it exercises that right, as relevant to joint employer status. Enforcement Guidance, "Coverage Issues," at Question 2, Example 5 (where an entity reserves the right to direct the means and manner of an individual's work, but does not generally exercise that right, the entity may still be found to be a joint employer). In assessing the right to control, EEOC does not consider any one factor to be decisive and emphasizes that it is not necessary to satisfy a majority of the factors. In particular, the fact that an individual performs work pursuant to a contract between the federal government and an outside organization and is paid and provided with benefits by that organization, on its own, is not enough to show that joint employment does not exist. Rather, the analysis is holistic; all the circumstances in the individual's relationship with the agency should be considered to determine if the agency should be deemed the worker's joint employer. Enforcement Guidance, "Coverage Issues," at Qs. 1 and 2. In sum, a federal agency will qualify as a joint employer of an individual if it has the requisite right to control the means and manner of the individual's work, regardless of whether the individual is paid by an outside organization or is on the federal payroll. See id., at Q. 2. Here, the analysis is straight-forward. The Agency played a large role in Complainant being hired by the staffing firm, she was supervised by and received her assignments from the Agency, the Agency had substantial input into her appraisals, Complainant was required to get permission by her Agency supervisor before taking leave, and the Agency set the parameters of her work schedule. Based on the legal standards and criteria set forth in our previous decisions and guidance, we find that the Agency possessed sufficient control over Complainant's position to qualify as her joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. The Agency argues that Complainant's writings indicate the staffing firm made the decision to terminate her, and she submitted no evidence that the Agency was involved. If Complainant alleged that she was fired by the staffing firm and the Agency was not involved in the decision, was not aware of the staffing firm's discrimination, or if aware corrective measures were not within its control, the Agency's argument would be relevant to a determination on whether it was a proper party on issue 2. But here, Complainant contends it can be inferred the Agency was involved in her termination and could have stopped it. The FAD is REVERSED. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations October 11, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant used a notice of appeal form which contained our office street address and the zip code 20507-0004. We presume Complainant received the appeal form from the Agency, as is routine. We take administrative notice that the United States Postal Service "Look Up a Zip Code" webpage lists the zip code of this office - Office of Federal Operations - as 20507-0005. Given this, we decline to find the appeal was untimely filed. 3 The copy of Complainant's EEO complaint form in the record is undated. She attached an affidavit to the form, where she spelled out her allegations. She signed the affidavit on February 20, 2017. 4 We take administrative notice that on October 30, 2015, Complainant filed Civil Action 1:15-cv-01849 against the Agency in the United States District Court for the District of Columbia. In her civil action complaint, Complainant alleged in part that she was discriminated against in violation of the Rehabilitation Act when the Agency failed to accommodate her disabilities, resulting in her termination on October 4, 2013. In document 15 of the civil action, Complainant included a copy of Agency's denial of her grievance, which indicates she alleged in part that she was discriminated against based on her disability when the Agency did not waive the requirement that she pass the run test. 5 Some of the information recounted above came from argument and documentation Complainant submitted on appeal. The Agency received Complainant's appeal submission. 6 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171892 2 0120171892